DUI Criminal Defense and Jury Trials- Clients and Defenses

In the last post I discussed the difficulty in DUI jury trials and why I enjoy DUI and criminal defense. In this blog entry, I will discuss clients and defenses. The two go hand in hand for a number of different reasons that will be explained. The last blog post in this series will examine the "cost-benefit" analysis which involves what is given up in the decision to go trial.

First, the mentality of the client is very important. Some clients go into an initial client meeting and the first thing they say is they want to plead guilty- they want to accept responsibility and all this over. On the other side of the spectrum, clients want a jury trial. For the first type, the advice is to wait- that the People's case must be examined prior to pleading guilty. Further, this is exactly the type of person that is least likely to be a risk to society- they recognize that their behavior must change- and can change their behavior on their own regardless of punishment. Personal responsibility is separate than the People's duty to prove their case beyond a reasonable doubt.

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DUI Criminal Defense and Jury Trials- Why I Enjoy it

I recently posted on the initial steps after getting a DUI and the decision to hire a DUI attorney. The decision to go to jury trial and which attorney to hire should go hand in hand. Some attorneys never go to trial. Things happen in cases where a previously poor case for trial may evolve into a viable one. For instance, in one case where a young client crashed into two cars at 7:15am in the morning, and was found to be over .25% BAC, the officer made multiple mistakes in both PAS and breath test administrations. The BAC was, evidentiary speaking, null and void. We suddenly went from a plea bargain case, to a potential jury trial case

As the decision to go to jury trial and hiring an attorney is intricately linked, I will discuss why I do this work. Primarily, I enjoy it. I enjoy the human aspect of criminal law. There are people that I work with, and people that are affected by the outcomes of my work. This is opposed to working in Civil Advisory for the City of San Diego. The contracts were sometimes 30-40 pages long and worth millions of dollars. But the outcomes may be for a study by a consulting firm, or a delayed project that was over budget and never get developed. Many aspects of the job was rewarding- like seeing a park or bridge constructed that I helped facilitate. But it didn't have the same one on one relationship as criminal law.

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March Madness III, What to do After Hiring an Attorney

From 64 down to four. The Aztec-ian dreams are long faded into hopes for next year. Now Mort and co. attempts to predict who will win it all. Mort has his attorney, and feels a mild sense of satisfaction- and apprehension.

After selecting an attorney, most clients feel a sense of relief, then also one of anxiety. The DMV APS hearing is set, but it isn't for four weeks. And the arraignment isn't for another five weeks. There isn't much to do but wait- and worry.

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March Madness III- Choosing an Attorney

The Aztecs run has come to an end, to the disappointment of Mort and many other San Diego State fans. To get more substance into this post, we will drop the narrative for now and focus on the attorney question.

The search for an attorney is very unique and often a surprise- not many people plan on getting a DUI. Nor are people educated in the effects of alcohol to realize they may be at risk of getting a DUI and therefore be prepared. Instead, the need for an attorney comes quick- compounded with the 10 day requirement, in California, to contact the DMV for a license suspension hearing.

Focusing on San Diego, there are many very good DUI attorneys, and many bad ones. The difference is significant, as many issues may not be known to attorneys that simply use DUIs to generate fees, and are not dedicated to the study of DUIs. Once the money is in, the People's deal is sold to the client by the attorney. In the alternative, an attorney that studies DUIs digs into the nuances and enjoys the minute differences.

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March Madness II- Tracking a San Diego DUI

Duke falls to the despair of the Blue Devil faithful and the delight of everyone else. Wushock made a very positive appearance, but his 15 minutes are up. Everyone loves Gonzaga, but they head back up to the rainy Pacific Northwest.

Like the plight of many a college basketball fan's favorite team, there can be only one winner, but many disappointments. Mort's team, the Aztecs, are advancing but he saw that second game at home- on the couch. He can drive, but he doesn't want to. Like most people that get DUIs, he didn't realize how much alcohol affected him and does not want to risk another one. The pink piece of paper is his temporary license, but he doesn't have a picture on it- he'd have to dig out his passport to get in a bar anyway.

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March Madness- First Steps in Getting and Handling A San Diego DUI

The March Madness NCAA basketball tournament is great time for getting together with friends and celebrating what Bruce Springsteen calls the "Glory Days." It is either reliving the love of an alma mater, or just an excuse to go out and have fun with friends. And like most American big sporting events (or perhaps any sporting events considering the reputations of international soccer hooligans), alcohol is not far behind.

It is the party atmosphere, the adrenaline pumping, the good times, and the excitement that leads fans to drink more than they intended. Or, it just flows down so easy as the beer soothes the throat for heartfelt yalps and screams, or the body adjusting to dehydration. So it's one that leads to three. Or, the pretty bartender at the Pacific Beach bar pours a stiffer drink than anticipated.

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I Love You Baby- Got Bail? Part Two

You wanted to curl up with your baby, but ended up curling up with Bubba, your new cell mate. As opposed to a beautiful, memorable evening that can launch a relationship worth a thousand tomorrows, you end up in a trauma facility forever recovering from the psychological buggering you endured in jail. You survived Valentine's Day, now there is just one more to go- President's Day. Hopefully your emancipation is through a symbolic, cultural celebration of our foundations of liberty, and not a physical release from jail.

What keeps you separate you from the long arm of the law is probable cause. This is what permits a law enforcement officer to break into your life, investigate, and possibly drag you to jail. Usually it is not what you expect. Please see the next few examples of the unexpected situations that lead drivers into the handcuffs of officers.

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I Love You Baby- Got Bail? Part One

Nothing says I love like being handcuffed. Not the fluffy, furry handcuffs reserved at the local motel that rents rooms by the hour, but the cold-forged steel double locking ones. Alcohol has become part of our culture- it is a celebratory drug in a number of different forms. Any time someone drinks and gets behind the wheel, there is a danger of getting a DUI. (Note- "getting" a DUI is separate from "being" DUI- never forget that any deviation from total sobriety, no matter the cause or substance, is putting your life and the lives of others at risk. Cars kill- quite often.)

On this special evening, lovers and drivers will be having a glass of champagne, or a glass of wine (or two), or perhaps micro-brew pints on the water. Alcohol is everywhere- from the just celebrated holiday season, to Valentine's Day. It may be the elixir that lubricates the social interaction between the sexes, or a very special, expensive beverage meant to symbolize the importance of a relationship.

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Prof. Chemerinsky and Salinas v. Texas- Differing Invocations Recommended for the Fifth Amendment Magic Words, Part 2

On July 23, 2013 I had an opportunity to hear Prof. Chemerinsky speak in an event sponsored by the San Diego chapter of the Federal Bar Association. The renowned constitutional law professor's topic was the Supreme Court year in review. Most lawyers will remember Prof. Chemerinsky as the Bar/Bri Constitutional Law lecturer- he gives a 16 hour, two day lecture without using any notes. Part 1 of this blog post can be found here.

In the previous entry we discussed Prof. Chemerinsky and his talk on the Supreme Court year in review. The case Salinas v. Texas was discussed and I mentioned I had two objections with Prof. Chemerinsky's talk. The first one is related to his "magic words" and the second will be discussed further in this blog entry.

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Prof. Chemerinsky and Salinas v. Texas- Differing Invocations Recommended as the Fifth Amendment Magic Words, Part 1

On July 23, 2013 I had an opportunity to hear Prof. Chemerinsky speak in an event sponsored by the San Diego chapter of the Federal Bar Association. The renowned constitutional law professor's topic was the Supreme Court year in review. Most lawyers will remember Prof. Chemerinsky as the Bar/Bri Constitutional Law lecturer- he gives a 16 hour, two day lecture without using any notes.

Prof. Chemerinsky spoke without any visual aids or outlines this time too. His venue was one of the new, beautiful federal courtrooms in the Federal Court Annex in downtown San Diego. These multi-million dollar rooms are noted for both their aesthetics and multi-media capabilities. Prof. Chemerinsky only needed a small microphone and the room, packed with about 120 lawyers, was completely attentive.

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Your Right to Remain Silent Does Not Include Silence- Miranda and Salinas v. Texas, pt. 4

This is the last entry in a series based on the June 17, 2013 decision, Salinas v. Texas. By a 5-4 plurality, the Court decided that for Fifth Amendment protection, the one wishing to invoke the privilege must make his intentions clear. If the questioned is silent without stating he wishes Fifth Amendment protection, his silence may be used against him in court. The previous entry discussed the primary interests of the plurality and dissent opinions. In this entry, the dissent will be explored further.

Justice Breyer writes for the dissent the difficulty an accused faces if silence, and silence by itself, is not protected by the Fifth Amendment:

"He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances- even if he is innocent...If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt" Salinas v. Texas, 570 U.S. ____(2013).

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Vandalism Jury Instructions- What Attorney Tom Tosdal Demonstrated the San Diego City Attorney Could Not Prove

The jury in the San Diego Superior Court case against Occupy activist Jeffrey Olson was deliberating approximately 5 hours. Yesterday, Monday July 1, 2013, they came back with a not guilty verdict on all 13 counts of vandalism. While the local and national media has grasped the unique circumstances of the charge, what no one has addressed is what the City Attorney needed to prove to get a guilty verdict.

San Diego City Attorney Jan Goldsmith has received significant criticism for his decision to prosecute Olson for using water soluble sidewalk chalk to write anti-big banking messages on city sidewalk in front of the Bank of America branch in downtown San Diego. Olson was facing 13 counts, and the appropriate penal code section, PC 594, as a misdemeanor, has a maximum sentence of $1,000 fine and 1 year in jail. Thus, the value of the case is hyped as "$13,000 fine and 13 years in jail." However, it is extremely unlikely Olson would ever receive a sentence so severe. PC 594 is listed in the San Diego Superior Court Standard Sentencing Guidelines for Infractions and Misdemeanors.

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Your Right to Remain Silent Does Not Include Silence- Miranda and Salinas v. Texas, pt. 3

In the last blog post the plurality (controlling) decision in Salinas v. Texas was discussed. It is now the law of the United States that a criminal suspect not in custody must properly invoke his Fifth Amendment rights for his silence to be protected by the Fifth Amendment. The basis of the controlling decision, comprised of 5 justices, as well as that of the dissent, the remaining 4 justices, is discussed in this blog post.

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Your Right to Remain Silent Does Not Include Silence- Miranda and Salinas v. Texas, pt. 2

First, I will alleviate any concerns about the annoying, illogical (but true) title of this post . The Fifth Amendment protects against a person being forced to bear witness against himself. Although the "Right to Remain Silent" is a phrase popularized by the Miranda case, the Constitution does not contain an explicit right to remain silent. In the plurality, controlling decision (the greater number of Supreme Court justices agree, but not a majority decision) of Salinas v. Texas, Justice Alito writes that there is a long tradition of Fifth Amendment cases that require the party seeking Fifth Amendment protection to claim that he or she is seeking it.

The short version of the Salinas decision that if a non-custodial person is silent in light of questions, even possibly incriminating questions, that silence is not protected by the Fifth Amendment and can be used against him in a criminal case as circumstantial evidence of guilt. It is not enough to be silent, but a person must "invoke" the protections of the Fifth Amendment by stating clearly that such protections are being sought.

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Your Right to Remain Silent Does Not Include Silence- Miranda and Salinas v. Texas, pt. 1

It is not uncommon for a prospective client to call and during the course of an initial consultation for the client to state, "and they didn't even read me my Miranda rights!" This statement is made with such conviction and American righteousness that it still disappoints me to tell them, in the majority of circumstances, that the arresting officer didn't have to.

As previously discussed here, there is a proper way to handle police questioning in a DUI stop without incriminating yourself or being Mirandized. In it's crudest sense, Miranda v. Arizona 384 U.S. 436 (1966) protects a person from being beaten into confessing the commission of a crime. Thus, the questions need to be of a nature that is incriminating to an individual (i.e. "Professor Plum, did you use the candlestick or the lead pipe to kill Colonel Mustard in the library?") Professor Plum, if he is in custody, is protected by his Miranda rights- that is, he does not have to answer the question unless he wants to and after he has been admonished of his Miranda rights. In custody, essentially, is under arrest or in conditions where an individual is, in his perspective, in a custodial situation.

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